{"id":88913,"date":"2005-11-10T00:00:00","date_gmt":"2005-11-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharat-guthikonda-vs-the-pondicherry-university-on-10-november-2005-2"},"modified":"2018-03-04T12:51:18","modified_gmt":"2018-03-04T07:21:18","slug":"bharat-guthikonda-vs-the-pondicherry-university-on-10-november-2005-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharat-guthikonda-vs-the-pondicherry-university-on-10-november-2005-2","title":{"rendered":"Bharat Guthikonda vs The Pondicherry University on 10 November, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
Bharat Guthikonda vs The Pondicherry University on 10 November, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 10\/11\/2005 \n\nCoram \n\nThe Hon'ble Mr. Justice P. SATHASIVAM   \nand \nThe Hon'ble Mr. Justice S.K. KRISHNAN  \n\nWP.No. 557 of 2004  \nand WP.Nos, 558 and 610 of 2004  \n\nBharat Guthikonda.      .. Petitioner in W.P.No.557\/2004.\n\nJacob Pavothi Kunnel \nPhilip                  .. Petitioner in W.P.No.558\/2004.\n\nP. Ashok.               .. Petitioner in W.P.No.610\/2004.\n\n\n-Vs-\n\n1. The Pondicherry University,\n   represented by its Registrar,\n   Kalapet, Pondicherry.\n\n2. The Controller of Examinations,\n   Pondicherry University,\n   Kalapet, Pondicherry.\n\n3. The Medical Council of India,\n   represented by its Chairman,\n   Opp. To Matusundari College for Women, \n   New Delhi-110 002.\n\n4. The Vinayaka Missions Medical College, \n   represented by its Dean,\n   Keezakasakdi Post, Karaikal, Pondicherry. .. Respondents in all the W.Ps.<\/pre>\n
        Writ  Petitions  have been filed under Article 226 of the Constitution
\nof India,\n<\/p>\n
i) for issuance of a writ of declaration declaring  that  the  petitioner  has
\npassed  in  the  subject  of  Obstetrics  and  Gynaecology  of Final year MBBS
\nExamination held in November, 2003 with Registration No.  861 7510 as per  MCI
\nRegulations  1997 and also in the subject of Paediatrics by awarding one grace
\nmark, making eligible to undergo Internship and become  a  Registered  Medical
\nPractitioner;\n<\/p>\n
ii)  for  issuance  of a writ of declaration declaring that the petitioner has
\npassed in the subjects Surgery of Final year MBBS Course Examination  held  in
\nNovember 2003  with Registration No.  96177525 as per the MCI Regulations 1997
\nand also in the subject of Obstetrics and Gynaecology by  awarding  two  Grace
\nMarks  making  eligible  to  undergo  Internship and become Registered Medical
\nPractitioner; and<\/p>\n
iii) for issuance of a writ of declaration declaring that the  petitioner  has
\npassed  in  the subject of Paediatrics, in final year MBBS Examination held in
\nNovember, 2003 with Registration No.   8617508  as  per  the  MCI  Regulations
\nmaking  him  eligible  to  undergo  internship  and  become Registered Medical
\nPractitioner.\n<\/p>\n
Mr.  N.  Paul Vasanthakumar:- For petitioner in W.P.\n<\/p>\n
Nos.  557 and 558\/2004.\n<\/p>\n
Mr.  L.  Chandrakumar:- For petitioner in W.P.No.\n<\/p>\n
610\/2004.\n<\/p>\n
Mr.  K.  Srinivasan:- For Respondents 1 and 2 in all W.Ps.\n<\/p>\n
Mr.  R.  Singaravelan:- For 3rd Respondent in all W.Ps.\n<\/p>\n
:COMMON ORDER
\n(Order of the Court was made by P.  Sathasivam, J.,)<\/p>\n
Since the issue raised in these petitions is one and the same, they are  being
\ndisposed of by the following common order:\n<\/p>\n
In W.P.No.  557\/2004 the petitioner Bharat Guthikonda seeks to issue a Writ of
\nDeclaration  declaring  that  he  has  passed in the subject of Obstetrics and
\nGynaecology of Final  year  MBBS  Examination  held  in  November,  2003  with
\nRegistration No.    8617510 as per Medical Council of India Regulations (“MCI”
\nin short),1997 and also in the subject of Paediatrics by  awarding  one  grace
\nmark,  making  eligible  to undergo Internship and become a Registered Medical
\nPractitioner.  In the other two writ petitions,  the  respective  petitioners,
\nnamely, Jacob  Pavothi  Kunnel  Philip  and  P.  Ashok have prayed for similar
\nrelief.\n<\/p>\n
2.  For convenience we shall refer the  case  of  the  petitioner  in  W.P.No.
\n557\/2004.  According to the petitioner, he has joined in the fourth respondent
\nMedical  College  for the 1st Year MBBS Degree course during the academic year
\n1997-98 under the new regulations.  He completed the MBBS  course  and  passed
\nall the examinations except OG and Paediatrics in which he is declared fail in
\nthe examination  conducted  in  November,  2003.    His Registration Number is
\n8617510.  The petitioner has passed in all other  subjects  and  in  November,
\n2003  examination  he passed in other two subjects viz., Surgery and Medicine.
\nHe is declared fail in the said two papers by applying Pondicherry  University
\nRegulations  which prescribe separate minimum in Theory and Practical which is
\ncontrary to Chapter IV 12 (4) of the Medical Council of India Regulations 1997
\nwhich deals with the  Professional  examinations,  distribution  of  marks  to
\nvarious disciplines.    Under  the  MCI norms in the subject of Obstetrics and
\nGynaecology, the petitioner is required to get 70\/140 and  he  secured  75\/140
\nand in  the  subject  of Paediatrics he is required to get 30\/60.  However, he
\ngot only 29 out of 60  which  means  he  is  lacking  one  mark  for  reaching
\naggregate of  50%.   The MCI Regulation clearly states that if a candidate has
\npassed in the other subjects in an examination  but  failed  in  only  in  one
\nsubject upto  5  marks  can  be  awarded  as  Grace  Marks.  In November, 2003
\nexamination, the Pondicherry University awarded upto 5 marks including in  the
\nsubject  of Paediatrics and if the petitioner is awarded one grace mark as per
\nthe MCI Regulations which is followed by the Pondicherry University  even  for
\nthe  November,  2003  examination,  he  can be declared pass in the subject of
\nPaediatrics also and thereby he is completing the MBBS Degree.    Even  though
\nthe  petitioner  has  satisfied MCI Regulations prescribed norms for declaring
\npass in the subject, is declared fail in the said two subjects of  Paediatrics
\nand O  and  G.    The  said  action  of  respondents 1 and 2 i.e., Pondicherry
\nUniversity is contrary to the MCI Regulations.\n<\/p>\n
3.  On behalf of Pondicherry University, its Registrar has  filed  a  separate
\nbut identical  counter  affidavit.  Here again, we shall consider the stand of
\nthe University as stated in W.P.No.  557\/2004.  The  petitioner  was  declared
\nfailed in two subjects, namely, obstetrics and Gynaecology and Paediatrics and
\ndeclared  pass in the other two subjects, namely, General Medicine and General
\nSurgery.  The Pondicherry University Regulations and Syllabus for Bachelor  of
\nMedicine  and  Bachelor  of  Surgery  which  came  into effect from July, 1997
\nonwards prescribes the standard of pass namely, Part II subjects, a  candidate
\nshould  secure  at  least  40% marks in University Theory Examinations and 50%
\nmarks in University Clinical examinations.  But he must secure  50%  marks  in
\ntheory   (Theory   +   Theory   internal   Assessment  +  Oral  and  Practical
\n(Practical\/Clinical + Practical  Internal  Assessment)  separately.    As  per
\nM.C.I.,  in  each  of  the  subjects  a  candidate  must obtain 50 per cent in
\naggregate with a minimum of 50% in theory including orals and minimum  of  50%
\nin practicals\/clinicals.    By  applying the standard fixed by the Pondicherry
\nUniversity, the petitioner in W.P.  No.  557\/2004 was  declared  fail  by  the
\nUniversity  in  the  examinations  conducted  during November, 2003 in the two
\nsubjects namely Obstetrics and Gynaecology and Paediatrics.  But  as  per  the
\nStandard fixed by the MCI the petitioner in W.P.No.  557 of 2004 has passed in
\nObstetrics  Gynaecology but failed in Paediatrics and he claims grace marks to
\nbe awarded in Paediatrics.  There is no prohibition under the  Indian  Medical
\nCouncil Act,  1956  to  prescribe  higher  standards.    Though the University
\nlargely and substantially follow the  MCI  Regulations,  it  has  however  put
\nhigher  condition  than  MCI  with  respect  of pass determination in order to
\nmaintain standards.  Similar averments have been made in the  other  two  writ
\npetitions also.\n<\/p>\n
4.   Medical  Council  of  India has also filed identical but separate counter
\naffidavit in all the 3 writ petitions.  The stand of the  Medical  Council  of
\nIndia  is  that the Regulations framed by it are statutory in character and as
\nhas been held by the  Supreme  Court  of  India,  the  same  are  binding  and
\nmandatory.  The 1997 Regulations stipulate the following:\n<\/p>\n
a)  A student must secure at least 50% (now reduced to 35%) of the total marks
\nfixed for internal assessment in  order  to  be  eligible  to  appear  in  the
\nUniversity Examination in that subject.\n<\/p>\n
b)  If  the  student  is able to obtain the minimum marks as above-said in the
\ninternal assessment,  he  shall  be  eligible  to  appear  in  the  University
\nExamination.\n<\/p>\n
c) Upon appearance in the University Examination the student must obtain\n<\/p>\n
(i) 50% in Theory including orals\n<\/p>\n
(ii) as well as 50% in Clinical\/Practical.\n<\/p>\n
d) The aggregate of the student in that subject must add up to more than 50%.\n<\/p>\n
e)  The total score of the student in a particular subject is to be calculated
\non the following basis:\n<\/p>\n
ON A SCALE OF 100\n<\/p>\n
i) The marks scored by the student in the Final University Examination must be
\ngiven 80% weightage.\n<\/p>\n
ii) The marks scored by the student in the internal assessment must  be  given
\n20% weightage.\n<\/p>\n
f)  The total marks of the student, after calculating it on the abovementioned
\nbasis must be more than 50%.\n<\/p>\n
Further, to clear any subject successfully in accordance with  the  Regulation
\non Graduate Medical Education, 1997, a candidate must get minimum of 50% marks
\nin  the  Theory  including  Oral  and  Practicals examination conducted by the
\nUniversity.  Further, the candidate must also get  minimum  of  50%  marks  in
\naggregate in the respective subject.  If any student fails in only one subject
\nthen  grace marks up to maximum of 5 marks can be awarded to such a student at
\nthe discretion of the University.  In view of the marks secured, the prayer as
\nclaimed cannot be granted.  Similar stand has been taken  in  other  two  writ
\npetitions.\n<\/p>\n
5.  In the light of the above pleadings, we heard Mr.  N.  Paul Vasanthakumar,
\nlearned counsel for  the  petitioner  in  W.P.Nos.  55 7 and 558\/2004; Mr.  L.
\nChandrakumar, learned counsel for petitioner in W.P.No.   610\/2004;  Mr.    K.
\nSrinivasan for Pondicherry  University;  and Mr.  R.  Singaravelan for Medical
\nCouncil of India.\n<\/p>\n
6.  In view of the fact that the issue raised  in  these  writ  petitions  had
\nalready  been considered by other High Court and this Court and orders passed,
\nwe are of the view that no elaborate discussion is required  in  these  cases.
\nThe petitioners in these writ petitions are all persons who had completed MBBS
\nCourse  through  Pondicherry  University  and  they  had  also  undergone  and
\ncompleted their internship (House Surgeon) on the basis of  interim  order  of
\nthis  Court  which  has  also  been  issued in favour of nearly about 25 other
\npersons.  These writ petitions have been filed for declaration to declare  the
\npetitioners  having  passed  the MBBS examination with respective Registration
\nNumber as per the MCI Regulations,  1997,  making  them  eligible  to  undergo
\nInternship and become Registered Medical Practitioners.\n<\/p>\n
7.   The  basis  which  culminated for these cases is that while declaring the
\nresults of the petitioners, the Pondicherry  University  state  that  separate
\nminimum  for  Theory  and  Practical  is  required  to  be obtained as per the
\nUniversity Regulations.  However, the  MCI  Regulations  would  prescribe  50%
\naggregate which reads as follows:\n<\/p>\n
Pass :   In each of the subjects a candidate must obtain 50% in aggregate with
\na  minimum  of  50%  in  Theory  including  orals  and  minimum  of   50%   in
\nPractical\/clinicals.\n<\/p>\n
The  MCI  Regulations further prescribe that the grace marks upto a maximum of
\nfive marks may be awarded at the discretion of the University to a student who
\nhas failed  only  in  one  subject  but  has  passed  in  all  other  subjects
\n(Regulation 13 (10).\n<\/p>\n
8.  Messrs.  N.    Paul  Vasanthakumar  and  L.  Chandrakumar, learned counsel
\nappearing for the petitioners, after taking us through various provisions from
\nthe MCI Regulations, brought to our notice a Division Bench  judgment  of  the
\nKerala High Court interpreting the above regulations and method of calculation
\nin  finding  out  aggregate  mark  and  subsequent  orders  by this Court, and
\nsubmitted that the petitioners are also entitled to reap the benefits of those
\ndecisions.  In Writ Appeal No.  1777 of 2002(C) dated  26-9-2002  (K.    FAHAD
\nMOHAMED AND  OTHERS  v.  CALICUT UNIVERSITY), the Division Bench of the Kerala
\nHigh Court (Hon’ble Mr.  Justice B.N.  SRIKRISHNA and Mr.  Justice R.  BASANT)
\nwhile considering the Regulations of Medical  Council  of  India  and  Calicut
\nUniversity,  concluded that “In the result, we hold that under the Regulations
\na candidate shall be declared to  have  passed  if  he  has  got  50%  of  the
\naggregate  marks  in  University theory orals + internal assessment theory and
\n50% of the aggregate marks in  University  practicals  +  internal  assessment
\npracticals\/clinicals”.    By  saying  so,  the  Division  Bench  declared  the
\nappellants before them as passed and also issued direction to  the  University
\nto redeclare the results in accordance with the above directions and permitted
\nthe appellants to continue their house surgencies.\n<\/p>\n
9.  In  W.P.Nos.    25492  and  25884\/2003  dated 31-10-2003 ( SALINI NAIR AND
\nANOTHER v., PONDICHERRY UNIVERSITY REPRESENTED BY ITS REGISTRAR),  one  of  us
\n(P.  Sathasivam, J.,) had an occasion to consider similar question.  Following
\nthe  Division  Bench  decision of the Kerala High Court (cited supra), similar
\ndirections have been issued in those Writ Petitions.\n<\/p>\n
10.  Though Pondicherry University has filed Writ Appeals only with  reference
\nto  their claim that the University is entitled to frame higher standards than
\nthat of MCI, it is brought to our notice  that  the  orders  passed\/directions
\nissued have   been   fully   implemented.    In  CONTROLLER  OF  EXAMINATIONS,
\nPONDICHERRY UNIVERSITY v.  SUDHAKAR,<\/a> reported in 2005 (3) CTC 2,  First  Bench
\nof  this  Court, while following the judgment of the Supreme Court in STATE OF
\nTAMIL NADU v.  S.  B.  PRADHEEP<\/a> (2004 (2) CTC 227) and another Division  Bench
\njudgment  rendered  in  Writ  Appeal  No.220  to  224  of  2004  CONTROLLER OF
\nEXAMINATIONS, PONDICHERRY UNIVERSITY v.  T.P.  JAYAPRAKASH)  dated  23-2-2005,
\naccepted  the  contention  of  the  University  that they can prescribe higher
\nqualifications than  that  fixed  by  the  All  India  Council  for  Technical
\nEducation.    However,   direction  has  been  issued  namely  that  the  writ
\npetitioners are entitled  to  receive  the  necessary  certificates  from  the
\nUniversity to enable them to produce before the Tamil Nadu Medical Council for
\nregistration  and  further  direction  was  issued that if such certificate is
\nproduced, the Medical Council shall register the names of  the  appellant  and
\nthe writ petitioner.    Even  in  Writ  Appeal Nos.  771 and 772 of 2004 dated
\n04-01-2005 (PONDICHERRY UNIVERSITY REPRESENTED BY ITS REGISTRAR AND OTHERS  v.
\nKRISHNA  KABIR  ANTHONY  AND OTHERS) though the First Bench reiterated that it
\nwas open for the Pondicherry University to fix higher  medical  standard  than
\nthose  prescribed  by  the  Medical  Council  of India, Pondicherry University
\nitself informed the Bench that since the writ petitioners have  completed  the
\ninternship,  they  do not want to disturb them and they may also be registered
\nas medical practitioners, but insisted a declaration of the law on prescribing
\nhigher standard by the University than that of MCI.  It is also brought to our
\nnotice that in similar order dated 14-11-2003 made in W.P.Nos.  27901 to 27904
\nand 28519 of  2003  (T.    JAYAPRAKASH  and  OTHERS  v.    THE  CONTROLLER  OF
\nEXAMINATION,  PONDICHERRY  UNIVERSITY),  the  directions  given by the learned
\nSingle Judge of this Court (D.  Murugesan, J.,) have been implemented  by  the
\nPondicherry University.   Learned counsel have also brought to our notice that
\nsimilar directions issued by another learned Single Judge of  this  Court  (N.
\nKannadasan, J.,)  in  W.P.Nos.    20385,  30049,  29882  and  31083\/2003 dated
\n30-03-2005 have also been implemented by Pondicherry  University.    Mr.    R.
\nSingaravelan,  learned  counsel appearing for the MCI while admitting that all
\nthe above mentioned  directions  have  been  implemented  by  the  Pondicherry
\nUniversity, contended that there is no need to issue similar directions in the
\nabove cases also.    We  are unable to accept his claim.  It is not in dispute
\nthat as per the Regulations of MCI, as interpreted by the  Division  Bench  of
\nthe  Kerala  High  Court and followed by this Court in subsequent decisions, a
\ncandidate shall declare to have passed if he  has  got  50  per  cent  of  the
\naggregate  marks in University theory + orals + internal assessment theory and
\n50% of the aggregate marks in  University  practicals  +  internal  assessment
\npracticals\/ clinicals.    It  is also not in dispute by applying the same, the
\npetitioners are entitled to grace marks upto a maximum of  5  marks  who  have
\nfailed only  in one subject but have passed in all other subjects.  As rightly
\npointed  out,  the  Medical  Council  of  India  cannot  be  allowed  to  take
\ninconsistent stand  at  various Courts.  It is also brought to our notice that
\nduring the time when the petitioners herein were  allowed  to  continue  their
\ninternship  course,  the  law  holding  the field was that of Adhiyaman’s case
\nreported in 1994 (4) SCC 104 and therefore based on the  interim  orders,  the
\npetitioners  have  been  allowed  to  undergo  their  internship and have also
\ncompleted the same.\n<\/p>\n
11.  It is relevant to point out that in para 14  of  S.V.    BRATHEEP’s  case
\n(2004  (2)  CTC  227),  the  Supreme  Court  has  held that the admission made
\nalready, pursuant to the interim order of this Court, is valid  and  protected
\nthem to pursue the course and keeping the above aspect into consideration, the
\nPondicherry  University  gave  consent  for issuance of Certificates for other
\nsimilarly placed persons, who are none other  than  the  batchmates  of  these
\npetitioners.   It  is  also  brought  to  our  notice that the relief had been
\ngranted by this Court in 2005 (3)  CTC  2  (cited  supra)  for  the  batch  of
\nstudents  who  had  undergone  the  course along with the petitioners, lacking
\nmarks as per Pondicherry University Regulations  and  the  results  have  been
\npublished and they have been completed successfully by grant of grace marks in
\none   subject   upto  five  marks  and  all  of  them  registered  as  Medical
\nPractitioners.  It is also relevant to point out that  during  the  course  of
\nhearing,  learned counsel appearing for the Pondicherry University has brought
\nto our notice that the Pondicherry University itself  had  informed  to  their
\nstanding counsel  (Mr.    K.Srinivasan) to the effect that as per the existing
\nMCI Regulations, the internal marks both in  the  written  and  practical  are
\ntaken into account while computing the pass of a student.\n<\/p>\n
12.   In  the  light  of  our  discussion, petitioners are entitled to similar
\ndirections in their writ petitions; consequently, all the writ  petitions  are
\nallowed and directions issued as prayed for.  No costs.\n<\/p>\n
Index:- Yes.\n<\/p>\n
Internet:- Yes<\/p>\n
R.B.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Bharat Guthikonda vs The Pondicherry University on 10 November, 2005 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 10\/11\/2005 Coram The Hon’ble Mr. Justice P. SATHASIVAM and The Hon’ble Mr. Justice S.K. KRISHNAN WP.No. 557 of 2004 and WP.Nos, 558 and 610 of 2004 Bharat Guthikonda. .. Petitioner in W.P.No.557\/2004. 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